Raw milk, group sex and unlikelihood that the Crown will appeal the Schmidt verdict

America’s foremost raw milk journalist David E. Gumpert reads the entrails of the recent Michael Schmidt verdict and discusses what it all means for the future of food freedom on his The Complete Patient blog. Here’s an excerpt:

On the eve of the verdict, David E. Gumpert shares raw milk and cheese with farmer Michael Schmidt while the two of them were waiting to be interviewed for an upcoming documentary series on milk.

“Americans tend to view Canada as a socialist version of the United States, what with its universal health care system and high taxes. In this view, it’s the U.S. that epitomizes individual rights and capitalist opportunity.

Yet it took a Canadian judge Tursday to provide the strongest affirmation yet of individual food rights via its ruling in favor of raw dairy farmer Michael Schmidt. The Ontario judge, Paul Kowarsky, stepped into a void left by the failure of American judges in New York, California, Maryland, and Pennsylvania to show anything near the Canadian judge’s backbone and legal sophistication in ruling on consumer rights with regard to raw milk.

The only American judicial ruling in a raw milk case even beginning to approach the Ontario ruling came in late 2006, when an Ohio judge ruled in favor of dairy farmer Carol Schmitmeyer and her herdshare. But the ruling was based more on the state’s inconsistent approach to regulating herdshares than to a major endorsement of the arrangement.

But there is one important similarity I believe the two cases will wind up sharing: Just as the Ohio Department of Agriculture decided not to appeal the Schmitmeyer ruling, I predict Ontario officials won’t appeal the Michael Schmidt ruling. The reason has to do with the very strong ruling put together by Judge Paul Kowarsky. Generally speaking in countries with well established legal systems like Canada and the U.S., it’s difficult to appeal a well-reasoned and documented lower court opinion. Appeals court judges don’t like to overrule lower court judges who have done their homework.

One of the most significant case law matters for the judge was to examine conditions under which consumers might organize themselves privately to avoid public health restrictions and regulations. He pointed to a case involving a private club in Toronto organized so smokers would be able to avoid the city’s anti-smoking laws in public places. The effort was struck down because the club advertised and had minimal dues.

But another case that seemed to fascinate the judge involved a Montreal club organized for members to engage in group sex. The club was similar to Michael Schmidt’s cow share in that it wasn’t advertised and required members to pay dues. Two lower courts ruled that the club was illegal because of concerns about public health risks from sexually transmitted diseases But Canada’s Supreme Court ruled in favor of the club, the judge said. “The risks of contracting a sexually transmitted disease were unrelated to the issue of decency,” he said. In other words, even though society might frown on the activity, individuals who decided to join the club were entitled to make their own determinations about health risks.

The judge asked at one point: “Are cow share members bound to accept protection” from public health authorities? The answer was that, so long as the cow share was organized properly—not advertising, explaining risks, well structured—the answer was no.

The four lawyers representing Ontario’s Ministry of Health who sat at the legal table while Judge Kowarsky read his opinion were noticeably squirming toward the end of his two-and-a-half hour oration. As well they should have been. Michael Schmidt had represented himself, and outmaneuvered them….”

Read the whole thing on The Complete Patient.

The wider picture of the dinner table interview scene at Glencolton Farms.

14 Comments

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14 responses to “Raw milk, group sex and unlikelihood that the Crown will appeal the Schmidt verdict

  1. Bernie Bailey

    Here is the choice we face

    They will appeal it all the way to the supreme court or they will regulate it to death even to the point of creating unwritten policies
    Been there and through that

    History repeating its self

    Still one vote
    Bernie

  2. thebovine

    Bernie,

    The ruling was that raw milk cowshares are outside their regulatory jurisdiction.

    I don’t see how if the government doesn’t appeal, it will lead to either of the two scenarios you describe.

    Still, glad you took the time to comment!

  3. Bernie Bailey

    Yes This Is True,

    Please keep in mind that the road you travel I have been down. Their tactics, so far, are the same as 1997.

    Because it is legal to sell raw milk it is legal to regulate now. They will draft a policy that states the level of bacteria that will be allowed. I predict that it will be so low that pasturised milk could have a hard time with it. The natural milk farmers will not be allowed to participate in any policy creations.

    All natural milk farmers need to get their milk tested by a private lab to protect themselves.

    Bernie

  4. Bernie Bailey

    Sorry in my previous blog I said sell raw milk and what I should of said was cow sharing.

  5. thebovine

    Bernie,

    If cowshares are outside the regulators’ jurisdiction, what would they be doing making regulations that apply to cowshares?

    They wouldn’t, because it’s not their realm of responsibility.

    It’s the distinction between private and public.

  6. thebovine

    Of course if we wanted to pursue a wider market for raw milk that would be through channels other than cowshare arrangements, then we’d have to be engaging in dialog with regulators over what standards would be applicable in that case.

  7. shane

    To sum up the 2.5 hour decision in a few words may seem like folly but I think it is possible. In my laymans terms the judgment states that 1) All due diligence was followed to attempt to prevent any possible injury to the involved parties. 2) A private club was established that is outside of the regulatory system. 3) This particular regulatory system was designed to protect the uneducated public. 4) The people in the private club do not need this regulatory protection because they are very well educated. 5) The club was not advertised. 6) A high level of determination and fees were required to join the club. 7) There were signs indicating that the raw milk was for members only.

    Could they attempt to regulate a private club setup in this manner? In some cases I suppose they could – if they found there was a public health concern with drinking raw milk they would certainly regulate it, probably making consumption illegal, thereby making the private club illegal. If they did that the next step then would be medical milk. Perhaps we should get some of those medical benefits established before it’s too late.

    Michael Schmidt has established some very important guidelines for operating a raw milk club, one could think of these guidelines as a sort of regulation. Cleanliness, of course, was key. Regular testing of the product was also very important. I believe there were other steps taken that were spelled out in the judgment. Some of these steps, especially weekly testing, may be outside of the ability of the small farmer with only one or two cows. Failure to follow due diligence in a manner very similar to Schmidt may result in a court case going the other way, especially if there are injuries involved.

    I hope Michael Schmidt does go through with his ideas on entering the political arena. The regulatory and legal system is like playing a game of chess and we will need to setup a good defense and offense if we wish to maintain self determination in our food supply.

  8. Bernie Bailey

    Hope you guys are right
    .I was at a dairy farmers on Friday and he and his friends are delighted on the ruling as now they can send the milk to the Milk Board and instead of getting penalized for over quota the can run an add in the local paper and sell the over quota through cow share. The judge wade in and now you have to let the politicians look at this, will they see this as skirting the law and amend the milk act to take care of this problem or will they make a law to regulate the natural milk industry. We all know were the bureaucrats stand and they not you or I will be putting together the policies . I would like to believe that this is all worry for nothing but of all the people you will blog with I am one who came up against these very entities and I know they will stop at nothing now that egos have been bruised

    Having said that I do like Michaels victory

  9. Bernie Bailey

    Shane
    Good question and I am sure we will hear about this. See how things take on a life of there own.The Quota farmers are losing a thousand members as the Marketing Board has no sales for thier milk because the big three dairies are importing milk powder to make Canadian cheese, should these family farms become cow share opperations or quit ?Bad timing for the Board good timing for Mike

  10. Michael

    This is a highly dangerous territory. If you are licensed by the milk board you are falling under their jurisdiction. They have the legal authority under the law to enforce their policies. Nothing wrong with that. You can not have it both ways. If farmers are over quota they are still bound by their contract and license. That’s why I pointed out ,if now farmers think they can just go and run with this ruling, they will quickly realize that the judge clearly ruled that the regulations and various acts are in full force and effect. Make sure you read the ruling from Justice Kowarsky he did NOT legalize the marketing and selling of raw milk.
    I will go into more details later this week. The danger we are facing is the marketing of raw milk without GUIDELINES.(not regulations)

  11. Bernie Bailey

    Totaly agree with you , it is very dangerous as the Milk Board stopped shipping milk to my dairy the day I said “what” instead of “yes”but I was only the guy fixing the farmers wifes fridge last week and he has it all worked out.He will become one of the thousand that I talk about if he is not carefull
    Bernie

  12. Juliet Pehowich

    The are really the sexy girls I like

  13. thebovine

    Juliet,

    Which sexy girls were you referring to?

    Do you mean Michael Schmidt’s cows?

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